What changed, Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (E…

+ ### document
− ## CHAPTER I / SCOPE
− 
− ### Article 1 — Scope
− 
− This Regulation shall apply to the control of concentrations conducted pursuant to Regulation (EC) No 139/2004.
− 
− ## CHAPTER II / NOTIFICATIONS AND OTHER SUBMISSIONS
− 
− ### Article 2 — Persons entitled to submit notifications
− 
− 1. Notifications shall be submitted by the persons or undertakings referred to in Article 4(2) of Regulation (EC) No 139/2004.
− 
− 2. Where notifications are signed by authorised external representatives of persons or of undertakings, such representatives shall produce written proof that they are authorised to act.
− 
− 3. Joint notifications shall be submitted by a joint representative who is authorised to transmit and to receive documents on behalf of all notifying parties.
− 
− ### Article 3 — Submission of notifications
− 
− 1. Notifications shall be submitted in the manner prescribed by Form CO as set out in Annex I. Under the conditions set out in Annex II, notifications may be submitted in Short Form as defined therein. Joint notifications shall be submitted on a single form.
− 
− 2. The Form CO and the supporting documents shall be submitted to the Commission in the format and with the number of copies specified by the Commission from time to time in the *Official Journal of the European Union*. The notification shall be delivered to the address referred to in Article 23(1).
− 
− 3. The supporting documents shall be either originals or copies of the originals; in the latter case the notifying parties shall confirm that they are true and complete.
− 
− 4. Notifications shall be in one of the official languages of the Community. For the notifying parties, this language shall also be the language of the proceeding, as well as that of any subsequent proceedings relating to the same concentration. Supporting documents shall be submitted in their origi…
− 
− 5. Where notifications are made pursuant to Article 57 of the Agreement on the European Economic Area, they may also be submitted in one of the official languages of the EFTA States or the working language of the EFTA Surveillance Authority. If the language chosen for the notifications is not an off…
− 
− ### Article 4 — Information and documents to be provided
− 
− 1. Notifications shall contain the information, including documents, requested in the applicable forms set out in Annexes I and II. The information shall be correct and complete.
− 
− 2. The Commission may dispense with the obligation to provide any particular information in the notification, including documents, or with any other requirement specified in Annexes I and II where the Commission considers that compliance with those obligations or requirements is not necessary for th…
− 
− 3. The Commission shall without delay acknowledge in writing to the notifying parties or their representatives receipt of the notification and of any reply to a letter sent by the Commission pursuant to Article 5(2) and 5(3).
− 
− ### Article 5 — Effective date of notification
− 
− 1. Subject to paragraphs 2, 3 and 4, notifications shall become effective on the date on which they are received by the Commission.
− 
− 2. Where the information, including documents, contained in the notification is incomplete in any material respect, the Commission shall inform the notifying parties or their representatives in writing without delay. In such cases, the notification shall become effective on the date on which the com…
− 
− 3. Material changes in the facts contained in the notification coming to light subsequent to the notification which the notifying parties know or ought to know, or any new information coming to light subsequent to the notification which the parties know or ought to know and which would have had to b…
− 
− 4. Incorrect or misleading information shall be considered to be incomplete information.
− 
− 5. When the Commission publishes the fact of the notification pursuant to Article 4(3) of Regulation (EC) No 139/2004, it shall specify the date upon which the notification has been received. Where, further to the application of paragraphs 2, 3 and 4 of this Article, the effective date of notificati…
− 
− ### Article 6 — Specific provisions relating to reasoned submissions, supplements and certifications
− 
− 1. Reasoned submissions within the meaning of Article 4(4) and 4(5) of Regulation (EC) No 139/2004 shall contain the information, including documents, requested in accordance with Annex III to this Regulation.
− 
− 2. Article 2, Article 3(1), third sentence, Article 3(2) to (5), Article 4, Article 5(1) to (4), Article 21 and Article 23 of this Regulation shall apply *mutatis mutandis* to reasoned submissions within the meaning of Article 4(4) 4(5) of Regulation (EC) No 139/2004.
− 
− Article 2, Article 3(1), third sentence, 3(2) to (5), Article 4, Article 5(1) to (4), Article 21 and Article 23 of this Regulation shall apply *mutatis mutandis* to supplements to notifications and certifications within the meaning of Article 10(5) of Regulation (EC) No 139/2004.
− 
− ## CHAPTER III / TIME-LIMITS
− 
− ### Article 7 — Beginning of time periods
− 
− Time periods shall begin on the working day, as defined in Article 24 of this Regulation, following the event to which the relevant provision of Regulation (EC) No 139/2004 refers.
− 
− ### Article 8 — Expiry of time periods
− 
− A time period calculated in working days shall expire at the end of its last working day.
− 
− A time period set by the Commission in terms of a calendar date shall expire at the end of that day.
− 
− ### Article 9 — Suspension of time limit
− 
− 1. The time limits referred to in Articles 9(4), Article 10(1) and 10(3) of Regulation (EC) No 139/2004 shall be suspended where the Commission has to take a decision pursuant to Article 11(3) or Article 13(4) of that Regulation, on any of the following grounds:
− 
− (a) information which the Commission has requested pursuant to Article 11(2) of Regulation (EC) No 139/2004 from one of the notifying parties or another involved party, as defined in Article 11 of this Regulation, is not provided or not provided in full within the time limit fixed by the Commission;
− 
− (b) information which the Commission has requested pursuant to Article 11(2) of Regulation (EC) No 139/2004 from a third party, as defined in Article 11 of this Regulation, is not provided or not provided in full within the time limit fixed by the Commission owing to circumstances for which one of t…
− 
− (c) one of the notifying parties or another involved party, as defined in Article 11 of this Regulation, has refused to submit to an inspection deemed necessary by the Commission on the basis of Article 13(1) of Regulation (EC) No 139/2004 or to cooperate in the carrying out of such an inspection in…
− 
− (d) the notifying parties have failed to inform the Commission of material changes in the facts contained in the notification, or of any new information of the kind referred to in Article 5(3) of this Regulation.
− 
− 2. The time limits referred to in Articles 9(4), Article 10(1) and 10(3) of Regulation (EC) No 139/2004 shall be suspended where the Commission has to take a decision pursuant to Article 11(3) of that Regulation, without proceeding first by way of simple request for information, owing to circumstanc…
− 
− 3. The time limits referred to in Articles 9(4), Article 10(1) and (3) of Regulation (EC) No 139/2004 shall be suspended:
− 
− (a) in the cases referred to in points (a) and (b) of paragraph 1, for the period between the expiry of the time limit set in the simple request for information, and the receipt of the complete and correct information required by decision;
− 
− (b) in the cases referred to in point (c) of paragraph 1, for the period between the unsuccessful attempt to carry out the inspection and the completion of the inspection ordered by decision;
− 
− (c) in the cases referred to in point (d) of paragraph 1, for the period between the occurrence of the change in the facts referred to therein and the receipt of the complete and correct information.
− 
− (d) in the cases referred to in paragraph 2 for the period between the expiry of the time limit set in the decision and the receipt of the complete and correct information required by decision.
− 
− 4. The suspension of the time limit shall begin on the working day following the date on which the event causing the suspension occurred. It shall expire with the end of the day on which the reason for suspension is removed. Where such a day is not a working day, the suspension of the time-limit sha…
− 
− ### Article 10 — Compliance with the time-limits
− 
− 1. The time limits referred to in Article 4(4), fourth subparagraph, Article 9(4), Article 10(1) and (3), and Article 22(3) of Regulation (EC) No 139/2004 shall be met where the Commission has taken the relevant decision before the end of the period.
− 
− 2. The time limits referred to in Article 4(4), second subparagraph, Article 4(5), third subparagraph, Article 9(2), Article 22(1), second subparagraph, and 22(2), second subparagraph, of Regulation (EC) No 139/2004 shall be met by a Member State concerned where that Member State, before the end of …
− 
− 3. The time limit referred to in Article 9(6) of Regulation (EC) No 139/2004 shall be met where the competent authority of a Member State concerned informs the undertakings concerned in the manner set out in that provision before the end of the period.
− 
− ## CHAPTER IV / EXERCISE OF THE RIGHT TO BE HEARD; HEARINGS
− 
− ### Article 11 — Parties to be heard
− 
− For the purposes of the rights to be heard pursuant to Article 18 of Regulation (EC) No 139/2004, the following parties are distinguished:
− 
− (a) notifying parties, that is, persons or undertakings submitting a notification pursuant to Article 4(2) of Regulation (EC) No 139/2004;
− 
− (b) other involved parties, that is, parties to the proposed concentration other than the notifying parties, such as the seller and the undertaking which is the target of the concentration;
− 
− (c) third persons, that is natural or legal persons, including customers, suppliers and competitors, provided they demonstrate a sufficient interest within the meaning of Article 18(4), second sentence, of Regulation (EC) No 139/2004, which is the case in particular
− 
− — for members of the administrative or management bodies of the undertakings concerned or the recognised representatives of their employees;
− 
− — for consumer associations, where the proposed concentration concerns products or services used by final consumers.
− 
− (d) parties regarding whom the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EC) No 139/2004.
− 
− ### Article 12 — Decisions on the suspension of concentrations
− 
− 1. Where the Commission intends to take a decision pursuant to Article 7(3) of Regulation (EC) No 139/2004 which adversely affects one or more of the parties, it shall, pursuant to Article 18(1) of that Regulation, inform the notifying parties and other involved parties in writing of its objections …
− 
− 2. Where the Commission, pursuant to Article 18(2) of Regulation (EC) No 139/2004, has taken a decision referred to in paragraph 1 of this Article provisionally without having given the notifying parties and other involved parties the opportunity to make known their views, it shall without delay sen…
− 
− ►M4 Once the notifying parties and other involved parties have made known their views, the Commission shall take a final decision repealing, amending or confirming the provisional decision.** ◄ ** Where they have not made known their views in writing within the time limit set, the Commission's provi…
− 
− ### Article 13 — Decisions on the substance of the case
− 
− 1. Where the Commission intends to take a decision pursuant to Article 6(3) or Article 8(2) to (6) of Regulation (EC) No 139/2004, it shall, before consulting the Advisory Committee on Concentrations, hear the parties pursuant to Article 18(1) and (3) of that Regulation.
− 
− Article 12(2) of this Regulation shall apply *mutatis mutandis* where, in application of Article 18(2) of Regulation (EC) No 139/2004, the Commission has taken a decision pursuant to Article 8(5) of that Regulation provisionally.
− 
− 2. The Commission shall address its objections in writing to the notifying parties.
− 
− The Commission shall, when giving notice of objections, set a time limit within which the notifying parties may inform the Commission of their comments in writing.
− 
− The Commission shall inform other involved parties in writing of these objections.
− 
− The Commission shall also set a time limit within which those other involved parties may inform the Commission of their comments in writing.
− 
− The Commission shall not be obliged to take into account comments received after the expiry of a time limit which it has set.
− 
− 3. The parties to whom the Commission’s objections have been addressed or who have been informed of those objections may submit their comments on the objections. Any comments shall be submitted in writing within the time limit set. In their written comments, they may set out all facts and matters kn…
− 
− 4. Where the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EC) No 139/2004, it shall, before consulting the Advisory Committee on Concentrations, hear pursuant to Article 18(1) and (3) of that Regulation the parties regarding whom the Commission intends to…
− 
− The procedure provided for in paragraph 2, first and second subparagraphs, and paragraph 3 shall apply, *mutatis mutandis*.
− 
− ### Article 14 — Oral hearings
− 
− 1. Where the Commission intends to take a decision pursuant to Article 6(3) or Article 8(2) to (6) of Regulation (EC) No 139/2004, it shall afford the notifying parties who have so requested in their written comments the opportunity to develop their arguments in a formal oral hearing. It may also, a…
− 
− 2. Where the Commission intends to take a decision pursuant to Article 6(3) or Article 8(2) to (6) of Regulation (EC) No 139/2004, it shall also afford other involved parties who have so requested in their written comments the opportunity to develop their arguments in a formal oral hearing. It may a…
− 
− 3. Where the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EC) No 139/2004, it shall afford parties on whom it proposes to impose a fine or periodic penalty payment the opportunity to develop their arguments in a formal oral hearing, if so requested in the…
− 
− ### Article 15 — Conduct of formal oral hearings
− 
− 1. Formal oral hearings shall be conducted by the Hearing Officer in full independence.
− 
− 2. The Commission shall invite the persons to be heard to attend the formal oral hearing on such date as it shall determine.
− 
− 3. The Commission shall invite the competent authorities of the Member States to take part in any formal oral hearing.
− 
− 4. Persons invited to attend shall either appear in person or be represented by legal representatives or by representatives authorised by their constitution as appropriate. Undertakings and associations of undertakings may also be represented by a duly authorised agent appointed from among their per…
− 
− 5. Persons heard by the Commission may be assisted by their lawyers or other qualified and duly authorised persons admitted by the Hearing Officer.
− 
− 6. Formal oral hearings shall not be public. Each person may be heard separately or in the presence of other persons invited to attend, having regard to the legitimate interest of the undertakings in the protection of their business secrets and other confidential information.
− 
− 7. The Hearing Officer may allow all parties within the meaning of Article 11, the Commission services and the competent authorities of the Member States to ask questions during the formal oral hearing.
− 
− The Hearing Officer may hold a preparatory meeting with the parties and the Commission services, so as to facilitate the efficient organisation of the formal oral hearing.
− 
− 8. The statements made by each person heard shall be recorded. Upon request, the recording of the formal oral hearing shall be made available to the persons who attended that hearing. Regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets and o…
− 
− ### Article 16 — Hearing of third persons
− 
− 1. If third persons apply in writing to be heard pursuant to Article 18(4), second sentence, of Regulation (EC) No 139/2004, the Commission shall inform them in writing of the nature and subject matter of the procedure and shall set a time limit within which they may make known their views.
− 
− 2. The third persons referred to in paragraph 1 shall make known their views in writing within the time limit set. The Commission may, where appropriate, afford such third parties who have so requested in their written comments the opportunity to participate in a formal hearing. It may also in other…
− 
− 3. The Commission may likewise invite any other natural or legal person to express its views, in writing as well as orally, including at a formal oral hearing.
− 
− ## CHAPTER V / ACCESS TO THE FILE AND TREATMENT OF CONFIDENTIAL INFORMATION
− 
− ### Article 17 — Access to the file and use of documents
− 
− 1. If so requested, the Commission shall grant access to the file to the parties to whom it has addressed a statement of objections, for the purpose of enabling them to exercise their rights of defence. Access shall be granted after the notification of the statement of objections.
− 
− 2. The Commission shall, upon request, also give the other involved parties who have been informed of the objections access to the file in so far as this is necessary for the purposes of preparing their comments.
− 
− 3. The right of access to the file shall not extend to confidential information, or to internal documents of the Commission or of the competent authorities of the Member States. The right of access to the file shall equally not extend to correspondence between the Commission and the competent author…
− 
− 4. Documents obtained through access to the file pursuant to this Article may only be used for the purposes of the relevant proceeding pursuant to Regulation (EC) No 139/2004.
− 
− ### Article 18 — Confidential information
− 
− 1. Information, including documents, shall not be communicated or made accessible by the Commission in so far as it contains business secrets or other confidential information the disclosure of which is not considered necessary by the Commission for the purpose of the procedure.
− 
− 2. Any person which makes known its views or comments pursuant to Articles 12, Article 13 and Article 16 of this Regulation, or supplies information pursuant to Article 11 of Regulation (EC) No 139/2004, or subsequently submits further information to the Commission in the course of the same procedur…
− 
− 3. Without prejudice to paragraph 2, the Commission may require persons referred to in Article 3 of Regulation (EC) No 139/2004, undertakings and associations of undertakings in all cases where they produce or have produced documents or statements pursuant to Regulation (EC) No 139/2004 to identify …
− 
− The Commission may also require persons referred to in Article 3 of Regulation (EC) No 139/2004, undertakings or associations of undertakings to identify any part of a statement of objections, case summary or a decision adopted by the Commission which in their view contains business secrets.
− 
− Where business secrets or other confidential information are identified, the persons, undertakings and associations of undertakings shall give reasons and provide a separate non-confidential version by the date set by the Commission.
− 
− 4. If persons, undertakings or associations of undertakings fail to comply with paragraphs 2 or 3, the Commission may assume that the documents or statements concerned do not contain confidential information.
− 
− ## CHAPTER VI / COMMITMENTS OFFERED BY THE UNDERTAKINGS CONCERNED
− 
− ### Article 19 — Time limits for submission of commitments
− 
− 1. Commitments offered by the undertakings concerned pursuant to Article 6(2) of Regulation (EC) No 139/2004 shall be submitted to the Commission within not more than 20 working days from the date of receipt of the notification.
− 
− 2. Commitments offered by the undertakings concerned pursuant to Article 8(2) of Regulation (EC) No 139/2004 shall be submitted to the Commission within not more than 65 working days from the date on which proceedings were initiated.
− 
− Where the undertakings concerned first offer commitments within less than 55 working days from the date on which proceedings were initiated but submit a modified version of the commitments 55 or more working days from that date, the modified commitments shall be deemed to be new commitments for the …
− 
− Where pursuant to Article 10(3), second subparagraph, of Regulation (EC) No 139/2004 the period for the adoption of a decision pursuant to Article 8(1), (2) and (3) is extended, the period of 65 working days for the submission of commitments shall automatically be extended by the same number of work…
− 
− In exceptional circumstances, the Commission may accept commitments offered after the expiry of the time limit for their submission within the meaning of this paragraph provided that the procedure provided for in Article 19(5) of Regulation (EC) No 139/2004 is complied with.
− 
− 3. Articles 7, 8 and 9 shall apply *mutatis mutandis*.
− 
− ### Article 20 — Procedure for the submission of commitments
− 
− 1. The commitments offered by the undertakings concerned pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004 shall be submitted to the Commission at the address referred to in Article 23(1) in the format and with the number of copies specified by the Commission from time to time …
− 
− 1a. In addition to the requirements set out in paragraph 1, the undertakings concerned shall, at the same time as offering commitments pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004, submit one original of the information and documents prescribed by the Form RM relating to r…
− 
− 2. When offering commitments pursuant to Articles 6(2) or Article 8(2) of Regulation (EC) No 139/2004, the undertakings concerned shall at the same time clearly identify any information which they consider to be confidential, giving reasons, and shall provide a separate non-confidential version.
− 
− ### Article 20a — Trustees
− 
− 1. The commitments offered by the undertakings concerned pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004 may include, at the own expense of the undertakings concerned, the appointment of an independent trustee (or trustees) assisting the Commission in overseeing the parties' …
− 
− 2. The Commission may attach such trustee-related provisions of the commitments as conditions and obligations pursuant to Article 6(2) or Article 8(2) of Regulation (EC) No 139/2004.
− 
− ## CHAPTER VII / MISCELLANEOUS PROVISIONS
− 
− ### Article 21 — Transmission of documents
− 
− 1. The Commission may transmit documents and invitations to the addressees in any of the following ways:
− 
− (a) delivery by hand against receipt;
− 
− (b) registered letter with acknowledgement of receipt;
− 
− (c) fax with a request for acknowledgement of receipt;
− 
− (d) electronic mail with a request for acknowledgement of receipt.
− 
− 2. Unless otherwise provided in this Regulation, paragraph 1 also applies to the transmission of documents from the notifying parties, from other involved parties or from third parties to the Commission.
− 
− 3. Where a document is sent by fax or by electronic mail, it shall be presumed that it has been received by the addressee on the day on which it was sent.
− 
− ### Article 22 — Setting of time limits
− 
− In setting the time limits provided for pursuant to Article 12(1) and (2), Article 13(2) and Article 16(1), the Commission shall have regard to the time required for the preparation of statements and to the urgency of the case. It shall also take account of working days as well as public holidays in…
− 
− Time limits shall be set in terms of a precise calendar date.
− 
− ### Article 23 — Receipt of documents by the Commission
− 
− 1. In accordance with the provisions of Article 5(1) of this Regulation, notifications shall be delivered to the Commission at the address of the Commission's Directorate General for Competition as published by the Commission in the *Official Journal of the European Union*.
− 
− 2. Additional information requested to complete notifications must reach the Commission at the address referred to in paragraph 1.
− 
− 3. Written comments on Commission communications pursuant to Article 12(1) and (2), Article 13(2) and Article 16(1) of this Regulation must have reached the Commission at the address referred to in paragraph 1 before the expiry of the time limit set in each case.
− 
− 4. Where the Commission specifies that documents submitted to it or any additional copies thereof are to be submitted electronically, it shall specify the format from time to time in the *Official Journal of the European Union*. Submissions sent by electronic mail shall be sent to the electronic mai…
− 
− ### Article 24 — Definition of working days
− 
− The expression working days in Regulation (EC) No 139/2004 and in this Regulation means all days other than Saturdays, Sundays, and Commission holidays as published in the *Official Journal of the European Union* before the beginning of each year.
− 
− ### Article 25 — Repeal and transitional provision
− 
− 1. Without prejudice to paragraphs 2 and 3, Regulation (EC) No 447/98 is repealed with effect from 1 May 2004.
− 
− References to the repealed Regulation shall be construed as references to this Regulation.
− 
− 2. Regulation (EC) No 447/98 shall continue to apply to any concentration falling within the scope of Regulation (EEC) No 4064/89.
− 
− 3. For the purposes of paragraph 2, Sections 1 to 12 of the Annex to Regulation (EC) No 447/98 shall be replaced by Sections 1 to 11 of Annex I to this Regulation. In such cases references in those sections to the ‘EC Merger Regulation’ and to the ‘Implementing Regulation’ shall be read as referring…
− 
− ### Article 26 — Entry into force
− 
− This Regulation shall enter into force on 1 May 2004.
− 
− This Regulation shall be binding in its entirety and directly applicable in all Member States.
− 
− ### ANNEX I
− 
− **FORM CO RELATING TO THE NOTIFICATION OF A CONCENTRATION PURSUANT TO REGULATION (EC) No 139/2004**
− 
− **INTRODUCTION**
− 
− 1.1. ****The purpose of this Form CO****
− 
− This Form CO specifies the information that must be provided by notifying parties when submitting a notification to the European Commission of a proposed merger, acquisition or other concentration. The merger control system of the European Union is laid down in Council Regulation (EC) No 139/2004 of…
− 
− In order to limit the time and expense involved in complying with various merger control procedures in several individual countries, the European Union has put in place a system of merger control by which concentrations having a Union dimension (8) (normally, where the parties to the concentration f…
− 
− The Merger Regulation requires the Commission to reach a decision within a legal deadline. In an initial phase the Commission normally has 25 working days to decide whether to clear the concentration or to ‘initiate proceedings’, that is to say to undertake an in-depth investigation (10). If the Com…
− 
− In view of these deadlines, and for the ‘one stop shop’ principle to work, it is essential that the Commission is provided, in a timely fashion, with the information required to carry out the necessary investigation and to assess the impact of the concentration on the markets concerned. This require…
− 
− 1.2. ****Pre-notification contacts****
− 
− It is recognised that the information requested in this Form CO is substantial. However, experience has shown that, depending on the specific characteristics of the case, not all information is always necessary for an adequate examination of the proposed concentration. Accordingly, if you consider t…
− 
− The possibility to engage in pre-notification contacts is a service offered by the Commission to notifying parties on a voluntary basis in order to prepare the formal merger review procedure. As such, while not mandatory, pre-notification contacts can be extremely valuable to both the notifying part…
− 
− Accordingly, whilst the parties are solely responsible for deciding whether to engage in pre-notification contacts and when exactly to notify, parties are encouraged to consult the Commission on a voluntary basis regarding the adequacy of the scope and type of information on which they intend to bas…
− 
− In addition, it should be noted that certain concentrations, which are unlikely to pose any competition concerns, can be notified using a Short Form CO, which is attached to the Implementing Regulation, as Annex II.
− 
− Notifying parties may refer to the *‘Best Practices on the conduct of EC merger control proceedings’* of the Commission’s Directorate-General for Competition (‘DG Competition’), as published on DG Competition’s website and updated from time to time, which provide guidance on pre-notification contact…
− 
− 1.3. ****Who must notify****
− 
− In the case of a merger within the meaning of Article 3(1)(a) of the Merger Regulation or the acquisition of joint control of an undertaking within the meaning of Article 3(1)(b) of the Merger Regulation, the notification must be completed jointly by the parties to the merger or by those acquiring j…
− 
− In case of the acquisition of a controlling interest in one undertaking by another, the acquirer must complete the notification.
− 
− In the case of a public bid to acquire an undertaking, the bidder must complete the notification.
− 
− Each party completing the notification is responsible for the accuracy of the information which it provides.
− 
− 1.4. ****The requirement for a correct and complete notification****
− 
− All information required by this Form CO must be correct and complete. The information required must be supplied in the appropriate Section of this Form CO.
− 
− In particular you should note that:
− 
− (a) In accordance with Article 10(1) of the Merger Regulation and Article 5(2) and (4) of the Implementing Regulation, the time-limits of the Merger Regulation linked to the notification will not begin to run until all the information that has to be supplied with the notification has been received b…
− 
− (b) The notifying party or parties must verify, in the course of preparing their notification, that contact names and numbers, and in particular fax numbers and e-mail addresses, provided to the Commission are accurate, relevant and up-to-date (13).
− 
− (c) Incorrect or misleading information in the notification will be considered to be incomplete information (Article 5(4) of the Implementing Regulation).
− 
− (d) If a notification is incomplete, the Commission will inform the notifying parties or their representatives in writing and without delay. The notification will only become effective on the date on which the complete and accurate information is received by the Commission (Article 10(1) of the Merg…
− 
− (e) Under Article 14(1)(a) of the Merger Regulation, notifying parties who, either intentionally or negligently, supply incorrect or misleading information, may be liable to fines of up to 1 % of the aggregate turnover of the undertaking concerned. In addition, pursuant to Article 6(3)(a) and Articl…
− 
− (f) You may request in writing that the Commission accept that the notification is complete notwithstanding the failure to provide information required by this Form CO, if such information is not reasonably available to you in part or in whole (for example, because of the unavailability of informati…
− 
− The Commission will consider such a request, provided that you give reasons for the unavailability of that information, and provide your best estimates for missing data together with the sources for the estimates. Where possible, indications as to where any of the requested information that is unava…
− 
− (g) In accordance with Article 4(2) of the Implementing Regulation, the Commission may dispense with the obligation to provide any particular information in the notification, including documents, or with any other requirement specified in this Form CO where the Commission considers that compliance w…
− 
− The Commission’s experience shows that particular categories of information required by this Form CO, although necessary for the Commission’s examination of certain cases, may not be necessary for the Commission’s examination of a significant number of other cases. These categories of information ar…
− 
− Waiver requests should be submitted together with a draft Form CO in order to allow the Commission to determine whether or not the information in relation to which a waiver is being requested is necessary for the examination of the case. Waiver requests should be made either within the text of the d…
− 
− The Commission will consider waiver requests, provided that you give adequate reasons why the information in question is not necessary for the examination of the case. Waiver requests will be dealt with in the context of the review of a draft Form CO. Therefore, in accordance with DG Competition’s B…
− 
− For the avoidance of doubt, it should be noted that the fact that the Commission may have accepted that any particular information requested by this Form CO was not necessary for the complete notification of a concentration (using the Form CO) does not in any way prevent the Commission from requesti…
− 
− 1.5. ****How to notify****
− 
− The notification must be completed in one of the official languages of the European Union. This language will thereafter be the language of the proceedings for all notifying parties. Where notifications are made in accordance with Article 12 of Protocol 24 to the EEA Agreement in an official languag…
− 
− The information requested by this Form CO is to be set out using the sections and paragraph numbers of the Form CO, signing a declaration as provided in Section 11, and annexing supporting documentation. The original of the Form CO must be signed by persons authorised by law to act on behalf of each…
− 
− For the sake of clarity, certain information may be put in annexes. However, it is essential that all key substantive pieces of information, and in particular market share information for the parties and their largest competitors, are presented in the body of Form CO. Annexes to this Form CO must on…
− 
− Contact details must be provided in a format provided by DG Competition on its website. For a proper investigatory process, it is essential that the contact details are accurate. Multiple instances of incorrect contact details may be a ground for declaring a notification incomplete.
− 
− Supporting documents are to be submitted in their original language; where this is not an official language of the Union, they must be translated into the language of the proceeding (Article 3(4) of the Implementing Regulation).
− 
− Supporting documents may be originals or copies of the originals. In the latter case, the notifying party must confirm that they are true and complete.
− 
− One original and the required number of copies of the Form CO and the supporting documents must be submitted to DG Competition. The required number and format (paper and/or electronic) of copies will be published from time to time in the *Official Journal of the European Union* as well as on DG Comp…
− 
− The notification must be delivered to the address referred to in Article 23(1) of the Implementing Regulation. This address is published in the *Official Journal of the European Union* and available on DG Competition’s website. The notification must be delivered to the Commission on working days as …
− 
− All electronic copies of the Form CO and supporting documents must be provided in a useable and searchable format as specified on DG Competition’s website.
− 
− 1.6. ****Confidentiality****
− 
− Article 17(2) of the Merger Regulation as well as the corresponding provisions of the EEA Agreement (14) require the Commission, the Member States, the EFTA Surveillance Authority and the EFTA States, their officials and other servants not to disclose information they have acquired through the appli…
− 
− If you believe that your interests would be harmed if any of the information you are asked to supply were to be published or otherwise divulged to other parties, submit this information separately with each page clearly marked ‘Business Secrets’. You should also give reasons why this information sho…
− 
− In the case of mergers or joint acquisitions, or in other cases where the notification is completed by more than one of the parties, business secrets may be submitted under separate cover, and referred to in the notification as an annex. All such annexes must be included in the submission in order f…
− 
− 1.7. ****Definitions and instructions for purposes of this Form CO****
− 
− Notifying party or parties : in cases where a notification is submitted by only one of the undertakings who is a party to an operation, ‘notifying parties’ is used to refer only to the undertaking actually submitting the notification.
− 
− Party(ies) to the concentration or parties :
− 
− these terms relate to both the acquiring and acquired parties, or to the merging parties, including all undertakings in which a controlling interest is being acquired or which is the subject of a public bid.
− 
− Except where otherwise specified, the terms notifying party(ies) and party(ies) to the concentration include all the undertakings which belong to the same groups as those parties.
− 
− Affected markets : Section 6 of this Form CO requires the notifying parties to define the relevant product markets, and further to identify which of those relevant markets are likely to be affected by the notified operation. This definition of affected market is used as the basis for requiring infor…
− 
− Year :
− 
− all references to the word year in this Form CO must be read as meaning calendar year, unless otherwise stated. All information requested in this Form CO must, unless otherwise specified, relate to the year preceding that of the notification.
− 
− The financial data requested in Section 4 must be provided in euro at the average exchange rates prevailing for the years or other periods in question.
− 
− All references to provisions of law contained in this Form CO are to the relevant articles and paragraphs of the Merger Regulation, unless otherwise stated.
− 
− 1.8. ****Description of quantitative economic data collected by the undertakings concerned****
− 
− In cases in which quantitative economic analysis for the affected markets is likely to be useful, briefly describe the data that each of the undertakings concerned collects and stores in the ordinary course of its business operations and which could be useful for such analysis.
− 
− The following are three examples of cases where and the data could be useful for quantitative economic analysis in those cases: a concentration between two providers of services that business customers purchase on the basis of structured procurement processes where candidate suppliers bid against ea…
− 
− The data description should include, in particular, information about the type of such data (information on sales or bids, profit margins, procurement process details, etc.), the level of disaggregation (per country, per product, per customer, per contract, etc.), the time period for which the data …
− 
− The information requested under this introductory part point 1.8 is not required for the Form CO to be considered as complete. However, given the statutory deadlines for Union merger control, notifying parties are encouraged to provide such descriptions as early as possible in cases and for the mark…
− 
− For further orientation, the undertakings concerned may refer to DG Competition’s *‘Best Practices for the submission of economic evidence and data collection in cases concerning the application of articles 101 and 102 TFEU and in merger cases’* as published on DG Competition’s website and updated f…
− 
− 1.9. ****International cooperation between the Commission and other competition authorities****
− 
− The Commission encourages the undertakings concerned to facilitate the international cooperation between the Commission and other competition authorities reviewing the same concentration. In the Commission’s experience, good cooperation between the Commission and competition authorities in jurisdict…
− 
− Furthermore, the Commission encourages the undertakings concerned to submit waivers of confidentiality that would enable the Commission to share information with other competition authorities outside the EEA reviewing the same concentration. Each waiver facilitates joint discussion and analysis of a…
− 
− 1.10. ****Provision of information to employees and their representatives****
+ 02004R0802 — EN — 01.09.2023 — 004.001 This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal…
− The Commission would like to draw attention to the obligations to which the parties to a concentration may be subject under Union and/or national rules on information and consultation regarding transactions of a concentrative nature vis-à-vis employees and/or their representatives.
− 
− SECTION 1
− 
− **Description of the concentration**
− 
− 1.1. Provide an executive summary of the concentration, specifying the parties to the concentration, the nature of the concentration (for example, merger, acquisition, or joint venture), the areas of activity of the parties to the concentration, the markets on which the concentration will have an im…
− 
− 1.2. Provide a summary (up to 500 words) of the information provided under Section 1.1. It is intended that this summary will be published on DG Competition’s website upon notification. The summary must be drafted so that it contains no confidential information or business secrets.
− 
− SECTION 2
− 
− **Information about the parties**
− 
− 2.1. ****Information on notifying party (or parties) and other parties to the concentration** (16)**
− 
− For each notifying party as well as for each other party to the concentration provide:
− 
− 2.1.1. name of undertaking;
− 
− 2.1.2. name, address, telephone number, fax number and e-mail address of, and position held by, the appropriate contact person; the address given must be an address for service to which documents and, in particular, Commission decisions and other procedural documents may be notified, and the contact…
− 
− 2.1.3. if one or more authorised external representatives of the undertaking are appointed, the representative or representatives to which documents and, in particular, Commission decisions and other procedural documents may be notified:
− 
− 2.1.3.1. name, address, telephone number, fax number and e-mail address of, and position held by, each representative; and
− 
− 2.1.3.2. the original written proof that each representative is authorised to act (based on the model Power of Attorney available on DG Competition’s website).
− 
− 2.2. ****Nature of the parties’ business****
− 
− For each of the notifying parties and the other parties to the concentration, describe the nature of the undertaking’s business.
− 
− SECTION 3
− 
− **Details of the concentration, ownership and control** (17)
− 
− The information sought in this section may be illustrated by the use of organisation charts or diagrams to show the structure of ownership and control of the undertakings before and after completion of the concentration.
− 
− 3.1. Describe the nature of the concentration being notified. By reference to the relevant criteria of the Merger Regulation and the Commission Consolidated Jurisdictional Notice (18):
− 
− 3.1.1. identify the undertakings or persons solely or jointly controlling each of the undertakings concerned, directly or indirectly, and describe the structure of ownership and control of each of the undertakings concerned before the completion of the concentration;
− 
− 3.1.2. explain whether the proposed concentration is:
− 
− (i) a full merger,
− 
− (ii) an acquisition of sole or joint control, or
− 
− (iii) a contract or other means of conferring direct or indirect control within the meaning of Article 3(2) of the Merger Regulation;
− 
− (iv) the acquisition of joint control in a full-function joint venture within the meaning of Article 3(4) of the Merger Regulation, and, if so, the reasons why the joint venture is considered to be full-function (19).
− 
− 3.1.3. explain how the concentration will be implemented (for example by conclusion of an agreement, by the launch of a public bid, etc.);
− 
− 3.1.4. by reference to Article 4(1) of the Merger Regulation explain which of the following have taken place at the time of notification:
− 
− (i) an agreement has been concluded,
− 
− (ii) a controlling interest has been acquired,
− 
− (iii) (the intention to launch) a public bid has been announced, or
− 
− (iv) the undertakings concerned have demonstrated a good faith intention to conclude an agreement.
− 
− 3.1.5. indicate the expected date of any major events designed to bring about the completion of the concentration;
− 
− 3.1.6. explain the structure of ownership and control of each of the undertakings concerned after the completion of the concentration.
… diff truncated at 500 changed lines …